IHSS

IHSS able and available spouse rule

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The California Department of Social Services (CDSS) has issued clarification regarding the In Home Supportive Services (IHSS) able and available spouse rules.

An able and available spouse is presumed to be available to provide without compensation any IHSS service except for personal care services and paramedical services.  This includes Domestic Services, Related Services, yard hazard abatement, teaching and demonstration, and heavy cleaning.  Spouse includes persons who are legally married or legal domestic partners, or two individuals of the opposite sex are holding out to be married.  As long as the couple remains married and does not obtain a divorce or annulment, or are not legally separated, the able and available spouse rule apples, even if the couple lives in separate locations and are estranged.

Any spouse who does not receive IHSS benefits is presumed to be able to provide all IHSS tasks except for personal care services and paramedical services, unless there is medical verification of the spouse’s inability to do so. If the spouse submits medical verification of inability to perform a task, the county should authorize house for a non-spouse provider to provide those IHSS services.  The spouse would continue to be counted as an able and available spouse for any other services that there is not verification of inability for the spouse to perform.

Services can be performed by another provider when the spouse is unavailable because of employment, health, or other unavoidable reasons such as incarceration, military deployment, a restraining order against the non-recipient spouse, or when recipient spouse has left the home or evicted the non-recipient spouse because of domestic violence, or the recipient spouse has left the home because of domestic violence.  This means that meal preparation, medical accompaniment and protective supervision that must be performed while the spouse is unavailable can be provided by another provider.

In addition, if an able spouse is out of the home for employment, health, or other unavoidable reason, for over 24 hours, the spouse is presumed to be unavailable to provide any IHSS services during the period of absence from the home.

If the spouse must leave full-time employment or is prevented from full-time employment because no other provider suitable is available, the spouse may provider medical accompaniment and protective supervision.

This ACL supersedes ACL 08-18, Question 7, that incorrectly stated that the able and available spouse rule does not apply when a married couple does not reside together.  (ACL 21-91, September 29, 2021.)

 

Extension of COVID-19 exceptions to IHSS program requirements

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The California Department of Social Services has provided guidance regarding extension of COVID-19 related exceptions for self-attestation of In Home Supportive Services (IHSS) forms.  County IHSS offices should begin transitioning back to in-person initial assessments and reassessments when possible.  When initial assessments and re-assessments are in person, required forms should be presented signed and collected at the assessment.

However, when the applicant or recipient or someone in their household has been infected with, has symptoms of, or has been exposed to COVID-19 in the two weeks prior to the assessment or re-assessment, the county should use telephone or video-conference to conduct the assessment. In such cases self-attestation of documents is acceptable.  This policy will continue until the end of the COVID-19 state of emergency.  However, some forms cannot be self-attested.  Original signatures may be mailed to the county IHSS for the Request for Order and Consent—Paramedical Services (SOC 321), IHSS Designation of Authorized Representative (SOC 839); and the IHSS Recipient’s Request for Provider Waiver (SOC 862).

When the COVID-19 state of emergency ends, the county must require original signatures on new forms at the recipient’s next annual reassessment.

Counties could accept copies of provider identity verification documents until September 30, 2021. However, when closure of county IHSS offices is required by their local Board of Supervisors, counties can continue to accept mailed in copies or fax copies of identity verification documents until the end of the COVID-19 state of emergency.  When the state of emergency ends, all applicant providers will again be required to present original identity verification documents.  Providers who provide copies of their identity verification documents will not be required to present original documents.  (ACL 21-112, September 29, 2021.)

COVID-19 updates to IHSS changes

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The California Department of Social Services has provided information about the status of changes to In Home Supportive Services (IHSS) policies because of COVID-19.

Counties should continue to use video-conferencing for IHSS initial assessments when the applicant or someone in the household has been infected with COVID-19, has symptoms of COVID-19, or has been exposed to COVID-19 in the two weeks prior to the initial assessment. Counties may continue to use telephone or videoconferencing for annual reassessments as needed until the end of the State of Emergency in California

Counties may continue to accept self-attestation instead of original signatures on most required forms through September 30, 2021.  Original signatures are required on the SOC 321 for Paramedical Services, the SOC 839 Authorized Representative form, and the SOC 862 Request for Provider Waiver.  Original signatures are required on new forms beginning October 1, 2021.

Counties continue to allow a 45-day good cause extension for submitting the SOC 873 Health Care Certification Form through September 30, 2021.

The current emergency provider backup system for IHSS recipients whose providers cannot work because of COVID-19 is extended to December 31, 2021.

Provider enrollment requirements were waived between April and August, 2021.  Providers who have not yet completed orientation now have until September 30, 2021 to complete orientation.  Provider orientation can be done remotely.

Waiving of presentation and photocopying of original documentation for providers is waived until September 30, 2021.  On or after October 1, 2021, applicant providers must present original documentation verifying identity.

For Quality Assurance/Program Integrity Home Visits, counties should continue to use videoconferencing if when the applicant or someone in the household has been infected with COVID-19, has symptoms of COVID-19, or has been exposed to COVID-19 in the two weeks prior to the initial assessment until the end of the State of Emergency.  (ACL 21-79, July 19, 2021.)

Determination of alternative resources for foster children receiving IHSS

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Minor children who are placed with approved resource families, or in a foster care setting which was required to become a resource family by December 31, 2020, are considered to be living in their own home and may receive In Home Supportive Services (IHSS) if they are otherwise eligible. Children in an SSI/SSP non-medical out of home living arrangement are not eligible for IHSS.

A foster care payment determined using the Level of Care Protocol is not an IHSS alternative resource that effects IHSS eligibility.  KinGAP and Approved Relative Caregiver benefits are also not alternative resources for IHSS.  In addition, the Dual Agency Rate and Supplement to the Dual Agency Rate for foster care and adoptive children eligible for regional center services are not an alternative resource for IHSS.  Finally, adoption assistance benefits are not an alternative resource for IHSS.

During the Level of Care Protocol determination, counties should ask oof the foster child is applying for IHSS.  If the caregiver has not applied for IHSS services for the foster child or IHSS has not yet been approved, counties cannot consider potential IHSS in the Level of Care Protocol determination.  If the foster child has been granted IHSS, the county considers all IHSS the child receives when making a Level of Care Protocol determination.

Counties should continue to review what additional services and supports foster children receive to determine whether those services and supports are alternative resources for purposes of IHSS.  (ACIN I-55-21, June 14, 2021.)

IHSS application processing and reassessments

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The California Department of Social Services (CDSS) reiterates the In Home Supportive Services (IHSS) requirements for processing applications, completing reassessment, and issuing Quality Improvement Actions Plans.  

Individuals have the right to apply for IHSS services or make an application through another person on their behalf. Counties are required to accept IHSS applications by telephone, by fax, or in person.  If the county has the capability, it must also accept applications online and by email. The applicant’s protected date of eligibility is the date the applicant requests services. Case Management, Information and Payrolling System (CMIPS) will automatically check for Medi-Cal eligibility. If the applicant is ineligible for Medi-Cal when they apply, they may be authorized services back to the protected date of eligibility. Prior to authorization of IHSS services, recipients must submit a Health Care Certification form (SOC 873) completed by a licensed health care professional, except when the recipient is at imminent risk of out of home placement.

People at imminent risk of out of home placement can be granted IHSS immediately, and be given 45 days to submit the health care certification, and can have up to 90 days for good cause.  

For purposes of monitoring counties’ compliance with application processing, CDSS will use the protected date of eligibility, and a 90-day timeframe to allow for the 45 days which may be necessary to complete the required Medi-Cal eligibility determination and the Health Care Certification form.

Counties must reassess individuals’ IHSS eligibility every year, and each time a recipient notifies the county of a change in circumstances. Counties should prioritize Communities First Choice Options (CFCO) annual reassessments because these recipients are typically most vulnerable. 

Although CDSS requires 100% compliance with reassessments, CDSS will issue a Quality Improvement Action Plan for counties that are below 90% compliance rate for CFCO recipients and an 80% compliance rate for all other recipients.  (ACIN I-58-21, June 14, 2021.)

COVID-19 Supplemental Paid Sick Leave for IHSS providers

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The California Department of Social Services (CDSS) has provided information about State Supplemental Paid Sick Leave for In Home Supportive Services (IHSS) providers.  Supplemental Paid Sick leave provides 80 hours of sick leave for IHSS providers in addition to the regular 16 hours of sick leave provided by the IHSS. State Supplemental Paid Sick Leave is available for IHSS providers when the provider is unable to work for a reason related to the COVID-19 pandemic. 

Supplemental Paid Sick Leave is available retroactively to January 1, 2021.  For claims for sick leave prior to March 31, 2021, counties should verify whether a previous sick leave claim was submitted.  If a claim was not previously submitted, federal Emergency Paid Sick Leave Act (EPSLA) funds must be used before State supplemental paid sick leave for leave prior to March 31, 2021. While EPSLA placed providers on a two week paid leave, State Supplemental Paid Sick Leave is claimed in hourly increments, as determined by the county. 

IHSS providers taking sick leave must not be listed on a timesheet for any hours the recipient claims for paid sick leave. 

Reasons to be qualified for State Supplemental Paid Sick Leave include:

  • The provider is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidelines of the State Department of Public Health, the CDC, or a local health officer.
  • The provider has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  • The provider is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.
  • The provider is attending an appointment to receive a vaccine for protection against contracting COVID-19 (Up to a maximum of 4 hours).
  • The provider is experiencing symptoms related to a COVID-19 vaccine that prevents the provider from being able to work.
  • The provider is caring for a family member who has been advised to self-quarantine due to concerns related to COVID-19.
  • The provider is caring for a child whose school or place of care has been closed or is determined otherwise unavailable for reasons related to COVID-19 on the premises. 

CDSS has revised the COVID-19 paid sick leave request form to allow requests based on federal or state requirements. CDSS has notices for both providers and recipients to inform them of the new State supplemental paid sick leave. Providers will be informed of their ability to submit claims for State supplemental paid sick leave and under what circumstances they may claim it. Recipients will be informed of their ability to request an emergency back-up provider, should their primary provider need to claim federal emergency or State supplemental paid sick leave related to the COVID-19 pandemic.

Supplemental Paid Sick Leave is available until September 30, 2021. (ACL 21-36, March 30, 2021.)